Dooley v Parker & Anor

A final decision in a multi-track claim includes the determination of liability for the costs of the action or issue, as well as the decision on the merits. It is therefore appealable to the Court of Appeal under the Access to Justice Act 1999 (Destination of Appeals) Order. A decision concerned only with the detailed assessment of costs is different and does not form part of a final decision for that purpose. Earlier guidance referring to a decision only on costs must be read as confined to detailed assessment, so that a costs-liability order cannot be sent by a different appellate route from the final decision of which it forms part.

The claimant's multi-track action settled on the day fixed for a two-and-a-half-day trial. District Judge Ewing made no order as to costs.

On an application for permission to appeal that costs order, a preliminary question arose as to the proper appellate destination. The Civil Appeal Office had indicated that the appeal lay to a circuit judge, and it was remitted to Judge Hughes in the Wrexham County Court. The Court of Appeal considered whether the costs order was part of a final decision within the Access to Justice Act 1999 (Destination of Appeals) Order.

1. The court unanimously held that it had jurisdiction to hear the application for permission to appeal. Lord Justice Sedley and Lady Justice Arden agreed with Lord Justice Brooke.

2. Paragraph 4(a) of the Access to Justice Act 1999 (Destination of Appeals) Order directs an appeal from a final decision of a master or district judge in a multi-track claim to the Court of Appeal. Under paragraph 2(c), a final decision is one which finally determines the proceedings, subject to appeal or detailed assessment of costs.

3. On its ordinary meaning, that definition includes a decision allocating liability for the costs of the action or issue. A costs-liability decision therefore forms part of the final decision and does not take that part of the case onto a separate appellate route.

4. Lord Justice Brooke clarified his earlier guidance in Tanfern Ltd v Cameron-Macdonald [2000] 1 WLR 1311. Its reference to a decision only on costs was intended to mean a decision only on the detailed assessment of costs. The wider shorthand had caused the jurisdictional difficulty in this case.

5. No decision was made on the merits of the proposed appeal against the costs order. The court determined only that the application was properly before it.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 96, the court held that it had jurisdiction to hear the application for permission to appeal.
• Wrexham County Court: After the Civil Appeal Office indicated that the appeal lay to a circuit judge, it was remitted to Judge Hughes, who adopted the interpretation later confirmed by the Court of Appeal.
• County Court (District Judge Ewing): On 31 May 2001, following settlement of the multi-track action, the judge made no order as to costs.